There are really two possible distinctions between abridge and prohibit. The Reagan Administration argued that "prohibit" means a criminal prohibition, and possibly express prohibitions enforced by civil penalties, but that it does not include mere burdens, such as loss of general welfare benefits. So the criminal truancy law in Yoder was a prohibiton, but the loss of unemployment compensation in Sherbert was not. But the maximum penalty in Yoder was a $50 fine (plus the risk of multiple prosecutions); Sherbert involved 26 weeks of benefits, and in other contexts, much more money could at at risk without an express prohibition. The Court said in Sherbert that there is no functional difference between a criminal fine of $X and withholding general welfare benefits of $X; the strength of any prohibition is determined more by the penalty imposed than by the wording of the rule. I think the Court got this right, and in any event, it has nothing to do with Gene Garmin's argument.
His argument goes to the unit of free exercise that is subject to the prohibition. When the Tudor and Stuart Parliaments prohibited saying the Mass, there is no doubt in ordinary usage that that was a prohibition. I take Gene's point to be that such laws prohibit "an" exercise of religion, or "one" exercise of religion, but not "all" exercises of religion, and thus not "the" exercise of religion. The required assumption is that "the" exercise of religion is a collective unit, apparently consisting of all possible exercises of religion, and that when government prohibits one exercise of religion, or a very important exercise of religion, or many but not all exercises of religion, or 99% of all exercises of religion, it has not yet prohibited "the" exercise of religion, because some fragment of "the" exercise of religion remains unprohibited. The collective unit has been "abridged," but not yet "prohibited."
That is not how we speak or write, especially when we are writing general rules to cover a wide range of possible cases. If I ask whether the Mass is "the exercise of religion," I think most speakers of English would say yes. If I ask whether it is an example that is included in "the exercise of religion," I think even Gene would say yes. Under the first answer certainly, and under the second quite plausibly, the Tudor and Stuart prohibitions of the Mass prohibited the exercise of religion.
Under Gene's reading, prohibiting the Mass is permitted, and the Free Exercise Clause failed to reach even the most obvious, notorious, and central example of the problem the Clause was designed to solve. Government can prohibit the central act of worship of a minority religion, and that is OK because it has not "totally" prohibited the exercise of religion. This is not a plausible interpretation either historically or linguistically.
And if he wants to say that discrimination is always forbidden, even if it is merely partial and not total, where does that come from? If "prohibiting" so clearly means totally, and if no form of the word "discrimination" appears as an object of the verb, or even anywhere in the Amendment, and if "abridging" is not used with respect to the exercise of religion, how can he produce a ban on discriminatory abridgments?
Douglas
Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin,
TX 78705
512-232-1341 (phone)
512-471-6988
(fax)
-----Original Message-----
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]
On Behalf Of Gene Garman
Sent: Tuesday, November 22, 2005 7:59 AM
To: Law
& Religion issues for Law Academics
Subject: Re:
Discrimination
Professor Laycock,
James Madison did discuss the
establishment and free exercise clauses in his Report on the Virginia
Resolutions and explained the obvious, that is, the First Amendment was a
limitation on the power of the national government, specifically Congress.
Regardless of any wording of the First Amendment in respect to abridging or
prohibiting, the First Amendment specifically restricted the national Congress
and did not give Congress a power to legislate or regulate on the subject of
religion or the press: no power over the press and no power over the exercise
of religion.
Madison specifically argued the First Amendment was
unnecessary because the national government had only delegated or enumerated
powers. As Professor Leonard W. Levy asserted, Black magic and only that can
turn the First Amendment into a repository of government power (The
Establishment Clause, second edition, p.140). In fact, both the 1788
Constitution and the 1791 First Amendment restrict federal government power in
respect to religion. As recently as 1947 Justices of the Supreme Court (Everson
v. Board of Education) unanimously agreed on the historical question and the
constitutional restriction of governmental power over
religion.
Therefore, the question I asked of you was not about history or
the power of the federal government in respect to religion. The assertion I made
and the question I asked was:
Madison did not leave specific commentary
as to the significance of the use of the different words "prohibiting" and
"abridging" in the same First Amendment. I guess he figured most Americans would
understand the meaning of the words used or would use Webster's. The fact is the
word "abridging" (which means reducing) is not the word used in regard to the
free exercise of religion, but it is the word which accommodationists prefer and
promote as if there is no difference in meaning between "prohibiting" and
"abridging." I welcome your input as to a definition of "prohibiting" having a
meaning different from totally.
Gene
Garman
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